Legal Reforms for better governance in Forestry Sector

An academic discourse covers the whole range of issues concerning processes of public policy-making & structures of authority, focusing on different modes of inter penetration of state-civil society relations.[2] When it is informed by cultural sensitivity, the academic discourse would take cultural variations as its point of departure & endeavour better understanding of the merits & demerits of different configurations of governance in different contexts.[3]  By contrast, donor discourses, with the ostensible object of ensuring   financial accountability & transparency, derives the notion of good governance from the perceptions of the donor, passing them off as having universal value. Stipulating & prescribing codes of conduct for the management of governmental affairs, as conditions for grant of development aid, the quest of international donor institutions may lead to a roll-back of many developing countries’ state systems & reduce their political weight[4].

Against this backdrop, the concept paper by Dr.Rakesh Saxena[5] gives a fresh  starting point to the debate on the management of one of the aspects of natural resources-the  governance in the Forestry sector.With the prevalent systems and practices of forest management and the statistical data in relation to them, analyzed in the paper   forming the foundational basis, an attempt is made in this paper to critically evaluate the existing Constitutional and legal frame of forest resource governance in India and its operationalization in practical terms.

The enquiry and the evaluation begins with the  Constitutional scheme of resource governance. This is followed by policy perceptions & legislative prescriptions in the forestry sector and their approximations to Constitutional  aspirations. The extent of actualization of the legal requirements by the administration and the judicial points of view and commands as to the entire scheme of forest governance, follow the legal enquiry. The study concludes with a few suggestions for reforms in the legal management for better forest governance in India.

II. CONSTITUTIONAL SCHEME OF RESOURCE GOVERNANCE:

The Indian Constitution, unveiled on Nov 26, 1949, is a document of faith of a sovereign democratic nation. It is the touchstone, with reference to which every conceivable sector of governance is assessed. It lays down several markers for a good resource governance regime in India. It is worthwhile to state them here as they constitute the points of reference with the help of which the governance in the forestry sector could be evaluated. The Constitutional commands for a good resource governance regime can be summarized under the following heads:

(a) Relation between State & Resources: The state has the eminent domain over all the resources within its territory. This is an essential attribute of its sovereignty. This, in simple terms, means that all the natural resources that exist within its territorial jurisdiction belong to the Union of India. This includes any thing of value that exists even in its Territorial Sea, Continental Shelf & Exclusive Economic Zone.[6] This also enables & empowers the state to acquire any private property for a public purpose[7]. In the Constitutional scheme of things, the state is understood to mean the people of India. Sovereignty rests with them, as the ultimate source of power[8]. Here, the government (Central, State or Local Self-Government), is the functional arm of the State entrusted with the responsibilities of protecting the Fundamental Rights of the people & to manage the resources in public interest[9]. It has the primary duty & obligation to protect & improve the environment & to safeguard the forests & wildlife in the country[10]. In the management of resources, it has to take care to ensure that the access, enjoyment & use of resources by the communities of people to be such that there is no iniquitous distribution of benefits derivable from them[11]. In a land- mark judgment, the Supreme Court of India explicitly laid down the doctrine of “public trust” whereby the government is visualized as a public trustee & not as the owner of resources[12]. It holds the resources in trust, to be used for the benefit & welfare of the people. As a trustee, it has to protect, maintain, manage & constantly endeavour to improve their quality& utility.

(b) Governance structure & its functioning: The Constitution envisages three tiers of governance- Central, State and Local. While all resources that are international in nature and those that are shared among states come under the law making power of either the central government or that which is concurrently exercised by the state and central governments, the resources that are strictly confined to a particular state, remain within the legislative competence of that state government. In cases where the power is exercised concurrently, if the state law conflicts with that of the centre, the writ the latter would prevail. As far as the local self government is concerned, it has no power of law making, but has the authority of administering the resources assigned to it by the state government, from time to time. In practical terms, it is the state government that has a major say in the management of resources. Going by the nature of Constitutional evolution, the intent and the movement is very much in favour of devolution of administration and securing benefits to the local bodies and institutions[13].

(c). Community &Resources: Resource governance, under the Constitutional  scheme, is not the exclusive monopoly of the agencies of state and the three                    layers of the political organization. Recognition of the symbiotic relationship between communities of people and providing certain levels of autonomy in the management of resources by them has been in place under the Constitution. In certain parts of India, areas for autonomous management as Districts. Regions & Scheduled areas are provided for, so as to facilitate management & enjoyment of benefits derivable from the resources to the Scheduled Tribal communities living in those areas. The Constitution facilitates existence & functioning of institutions, independent of state administration, composed of those communities themselves. Even the central & state legislations are made to pass through the filter of suitability & adaptability for application in these areas[14]. The level of autonomous existence of the Scheduled Tribes & management of resources by them, as conferred by the Constitution, is such that it can even restrict the fundamental freedom of movement &residence of others, if they were to affect or offend the way of life of the former[15].                                                                

(d) Individual & Resources: Subordination of individual interest over resources to that of the community & the nation are clearly evident in the Constitution. The “Public Trust” doctrine, discussed elsewhere[16], requires that the resources that are meant for the benefit & enjoyment of the national community (-that includes the forest resources), ought not to be permitted to be used for private benefit & commercial gain of a few individuals or private corporate entities. The Constitution goes a step ahead in requiring the individual to extend custodial care over resources by imposing a fundamental duty to protect & improve the natural environment including forests, lakes, rivers & wild life[17].                                        

From the foregoing, it is evident that the fundamental law of the land envisages a resource governance regime that makes the government, communities of people & the individual sharing the power, authority & the obligation in maintaining & improving the quality of environmental resources for the greater common good. In the whole scheme of things the government is visualized as the primary manager of the resources that include the functions of facilitating & building capacity in the communities of people in taking care of the local resources & to derive benefits in an equitous manner.   

III  EXISTING LEGAL FRAME & FORM OF FOREST GOVERNANCE:      

The Constitutional frame provides the fundamental blocks for a good resource            governance regime in independent India. The legislative & the operative tools of  governance present an interesting picture of continuation of laws, institutions,                                                         traditions  & practices initiated during the colonial period. While the Constitution    represents the collection consciousness of a free & independent nation, the entire                                  resource-management laws in India, including land & forests, were enacted during the British period. Perhaps, the only two exceptions to this are the Wildlife (Protection) Act, 1972(&the Amendment Act of 2002) & the Forest (Conservation) Act, 1980. The colonial mind-set, of acquisition of resource, alienation of people from it, centralization of power of management & economic exploitation to enrich the British crown, is clearly evident in the manner in which these laws were designed & put in to steam. Since, this legal tradition continued even after independence one could discern an attempt in the legal order of trying to fit into the Constitutional frame, a colonial apparatus of governance. It presents a  square peg in a round hole situation! This is clearly evident in every aspect of forest governance as detailed below:[18]

1. The Frame:   Priorities of objectives :

a) Conservation concern versus Economic Considerations: The Constitution conceives of a resource management regime that is primarily conservation oriented, with clear obligation of conservation & protection imposed upon the government and people alike. In terms of setting priorities, the Constitutional interpretation by the apex court, in this regard, is quite revealing. In the case of Tarun Bharat Sangh, Alwar v. Union of India, the court held that the imperative issue of environment placed the government above big business, individual liberty above government & environment above all[19]. In one of the earliest of forest & environment  related cases decided by the Supreme court, the Lime stone quarrying case[20], the Supreme Court went a step ahead in relating maintenance of ecological integrity to the Constitutionally guaranteed fundamental right to life. The court found that, the indiscriminate granting of licenses to lime stone quarries & the consequent soil erosion, deforestation & silting of river beds resulting from it, as affecting “the right of the people to live in a healthy environment with minimal disturbance to the ecological balance.[21]” As custodians of the Constitutional aspirations & spirit, the courts have, time & again, cautioned and corrected the administration against unplanned & destructive economic activities in the forest & wildlife areas. Conservation of specific eco-systems, protection of life- forms in forest & wild life areas as an integral aspect of holistic perspective of environmental governance, prompted the Orissa High court to issue instructions to the authorities to ensure conservation of the flora & fauna endemic to the Bhitarakarnika Wildlife Sanctuary, while carrying out any developmental activity in the area[22].

 In contrast, the policy & the law concerning the forests have, over the years, have given least emphasis to conservation. Conservation of resources as a Constitutional value & a judicially endorsed element of good governance appear to have got lost in translation &realization when one examines the legal regime concerning the forests. Curiously, the only law in independent India that is, conservation oriented is the Wildlife (protection) Act, 1972 (-& the Amendment Act of 2002). But, the brand of conservation professed & practiced under that law, is more of a western notion of resource conservation, of protection of wildlife through the legal fence of exclusion of local communities from becoming participants in the process. Since, an analysis of wildlife law is beyond the scope of this paper, the idea as to the extent of conservation concerns in that law is not developed here[23]. Interestingly, unlike the number of forest policy pronouncements, it is the National Conservation Strategy and Policy Statement on Environment & Development, 1992[24], puts conservation at the top of the agenda & strategy for better resource management by asserting that “it is the key element of the policy for sustainable development”[25]. However, it is another story that while this key component of good environmental governance re-oriented developmental activities with an environmental perspective, twelve years hence, a draft National Environmental Policy document, being kept in circulation by the same ministry, attempts to reform the system of  environmental management with the help of economic principles informing & influencing environmental decision-making, hinting that economic considerations & developmental priorities override conservation concerns[26]. Although, “conservation” is the middle-word in the Forest (Conservation) Act, 1980, it elaborates very little on the notion! All that it seeks &achieves is to take away the final power of the state government & invest the same in the centre, in deciding on use of forest for non-forest purpose. So, conservation is more of a device employed in statutory form for centralization of power over resources. If one digs very deep in history, one may stumble upon the world’s first recorded forest conservation measure & arguably only the legal measure for forest conservation in India, in the form of decrees inscribed in rocks & pillar edicts by Emperor Asoka[27]. But, that is history and human memory is short, especially when it is under alien influence.

The legislative history concerning forests, starting with the British rule, reveals the imperial instincts of a colonial power that had the primary objective of resource exploitation, for earning revenue & militarily secure the state. The earliest British legislative effort concerning forests in India was in 1806 when it reserved the teak plantation in the Malabar region. The objective was to make teak, the government property, & use the same in ship-building, as it was an excellent raw material for the purpose. It is said that this legislative effort, enabled the British to win the Napoleonic wars & expand the naval might of the imperial power[28]. During the reign of Dalhousie, tapping revenue earning potential of the forests became more manifest. Use of forest resources as raw materials in the construction of railway lines that facilitated transport of resources to nearest ports for further transmission to Britain, the 1855 memorandum on forest conservation, the 1862 direction for the establishment of forest department & the enactment of the Indian forest Act in 1865 (Act VII of  1865), completed the first phase of the efforts of the colonial masters in establishing control over forest resources, for the purpose enriching the crown in England. The 1865 Act, clearly spelt out, in legislative terms, the use of forests as raw materials in laying railway tracks. The first forest policy, unveiled in 1894, prioritized the claims of cultivation over forest conservation. The policy was essentially to promote commercial interests by ensuring supply of timber & other resources to colonial forest-based industries. Commercial exploitation of forests came to be recognized as promotion of national interest. Issuance of permits to professional forest contractors that resulted in the over exploitation of the resources and restricted the access to and use of resources to the people, impoverished the resource base & the communities that were dependant on them[29].

The Indian Forest Act, 1927, the law in force even today, is not different from the earlier efforts. Commercial exploitation of the resource is the dominant theme in it, as well. The colonial master appeared to be in a tearing hurry, as the shoddiness in the drafting of the law shows. Nowhere would one find “forests” & various categories of forests defined. Graces of language & clarity of expressions – the hallmark of good legal draftsmanship are conspicuous by their absence. The British apparently wanted just a legislative vehicle that would facilitate forest resource exploitation, on a commercial basis & the Act of 1927, precisely served that purpose[30]. The situation got exacerbated with new forest policy, of an independent nation, in 1952. It also did not speak of conservation as top priority. Instead, it recorded the appreciation of a free country, for the contribution of the forest department to the war efforts of the British in the Second World War! It further asserted that forest & its resources ought to be profitably put to use to meet the needs of the industry & generate revenue for the state. The policy envisaged classification of forests on a functional basis, under which a new category of Forests-National Forests-to be exclusively utilized for defence, communications & industry, was suggested. The National Commission on Agriculture, in 1976, advocated commercialization of forests at all costs & desired, “production of industrial wood have to be the raison d’ etre for the existence of forests”[31]. The forest authorities, very much in line with this thinking crystallized through the 1952 policy document, considered the conservation-oriented approach as economically unviable & grossly inadequate in meeting the growing commercial& industrial demand. Working plans were put in place by them, leading to clearing the existing forests & replanting those areas with fast growing, industrially useful trees that would ensure sustained yield. Establishment of Forest Development Corporations by a large majority of states, by 1979-80, is to pursue, promote & realize this objective[32].  

Forests continue to remain visualized as a money spinner for the state with the massive drive in favour of timber production & its aggressive marketing to earn valuable foreign exchange for the state by export of wood &wood based products. It has been a uni-dimensional growth. Timber production & timber trade is the main stay of forestry in India. While this remains the “Major Forest Produce”, the commercial angle of forest management has now extended to something that was hitherto characterized as “Minor Forest Produce” (MFP). This is a disconcerting development, as it has muddled up the whole scenario. The MFP, both during the British regime & for well over a quarter century of  our independence, was not part of the mainstream economics of the forest management. It, by &large remained a source of sustenance & income for forest dwellers & forest dependent communities. The phenomenal increase in revenue from the MFP & the recommendation of its intensive development by the National Commission for Agriculture[33] & the growing monetization of various forest products, more particularly MFP(Non – Timber Forest Produce –NTFP – in its new avatar) has resulted in a tendency to overexploit, much to the detriment of biodiversity conservation[34].   

(b) Re-working Priorities:-   A clear break from all the colonial notions of resource management & to put forest conservation on a pedestal, in a holistic way, was attempted in 1988, by the Revised National Forest Policy Resolution[35]. The policy accords quite a high priority to ensuring environmental stability & maintenance of ecological balance. It clearly states, derivation of direct economic benefits as subordinate to this principal aim. As a strategy for achieving the national goal of having a minimum of one-third of the total land area under forest or tree cover, it envisages a massive need-based & time-bound action plan for afforestation & planting of trees to particularly ensure fuel wood & fodder development on all degraded & denuded land in the country, with the involvement of people. It is, perhaps, the first time, that a policy document endeavored to strike a balance between conservation & commercial exploitation of forest resources, while accommodating the rights of local communities over them. But the problem is that, the policy is not backed up by any legislative enactment, at the Central level, & is left for  interpretation & application every which way the administration chooses. 

C Meeting the Demands of agricultural Sector - The approach & programmes of action, on the part of the state, especially in the post-independence era, appear to orient forest management to serve agricultural demands, as next only to meeting demands of commercial interests. This, in a way, is understandable as forestry sector did not have an independent existence of its own till nineteen eighties, having remained as an appendage of the Ministry of Agriculture, for long. The dense influence of the agricultural policy & practices has always been there in the manner in which the forest policy & law was evolved and put into application  long after the forest department got an independent identity of its own. The department of Forests & Wildlife was carved out from the Ministry of agriculture & was made part of a newly created ministry-Ministry of Environment & Forests-in 1984. A number of legislative draft efforts, in evolving a new revised forest law, for well over a decade (-between 1980 & early nineties) prioritized forests to serve agricultural interests, next only to that of the industry. Release of large tracts of forest land for cultivation of food crops, Social forestry programmes & massive diversion & withdrawal of forests for purposes of agro-forestry etc., are some of the illustrative examples ^[36]. An abortive legislative effort initiated by the Ministry of Environment & Forests, in 1994, proposed reservation of a quarter of the space in Forest plantation areas, to meet fodder & fuel requirements[37]. Even the national Agricultural policy, require a fourth of the forest area to be made available to supplement activities associated with agricultural operations.

(d) Communitarian interest: In terms of priorities of objectives & use, forest laws & forest management have been least associated with community interest, role & management. All the legislative efforts (i.e.1865, 1878, 1927, 1980 & several  other official exercises), without exception, have followed the same frame of governance-governance exclusively by state agency-with community interest recognized more by way of concession & an afterthought. Since the essential legal frame, content, substance, process & procedures are essentially that of the 1878 Act, this approach is understandable as it reflects the mind-set of the drafters of that law-Baden Powell & Brandis. By one stroke, the 1878 law, the spirit of which rules the roost even today, obliterated the customary right of use & management of forest resources by forest dwelling & forest-dependant communities of people[38]. The 1927 Act & the policy formulations thereafter (except the 1988 policy document) followed this tradition by distorting the “rights” of the community to “privileges” & “concessions”[39]. It is interesting to note here that among the communities that were appointed in 1970s’ to study & report about the forest & people relationship, when divergent opinions existed, the government chose to adopt & apply the recommendation of that committee which viewed people’s role under poor light, through the draft bill of 1994. Here is a sample: The National Commission on Agriculture, in 1976, observed that free supply of forest produce to the rural population & their rights & privileges brought destruction to the forests, that they contributed the least to forest regeneration & that it was unfair to expect that they be provided with forest produce free of charge. It recommended severe restrictions on the access of forest dwellers to the resources. In contrast, was the report of prof. B.K.Roy Burman, in 1982, that emphasized on the ‘symbiotic relationship’ between the forest & the forest dwellers & the need to mainstream their involvement in the afforestation programme[40]. Taking the cue from the 1976 report, the 1994 draft bill prescribed the continued exercise the right of the forest dependant communities in collection of fuel, fodder etc., “Subject to the carrying capacity”, with power vested with the forester to “commute” all rights & the final power with  the Central government to “rationalize” rights, privileges & concessions. The expressions with in quotes , when understood in the context in which they were used, in practical terms, give unbridled powers to the state agency to curtail & extinguish & access over forest resources[41]. It is another matter that the 1994 draft, is yet to see the light of the day. All the same, the legal frame of governance presents a jaundiced vision & the Constitutional palliative is yet to percolate & take effect.

2. THE FORM & SUBSTANCE: Structures & Tools of Forest Governance:

(a) Constitutional & Legislative shifts in governance: The Constitution envisages a system of governance that is at once cooperative & participatory, with the government obligated to ensure equity in access to use & management of resources. While the government remains the primary custodian, it also has to perform the functions of a public trustee of the resources. Individual & communities of people have both a right over resources & an obligation to conserve, protect & improve their quality in an inter – generational sense. This element & essence of good governance appears to have been overlooked when one observes the following Constitutional & legislative developments & their judicial interpretations, over the years:- 

v      Forests, was a state subject till 1976. The state governments had the power to exclusively legislate over & administer the forests within their jurisdiction. They were, however, administering the central law enacted in 1927, with quite a few of them also enacting their own forest laws, so as to operate with in the frame given by the centre. The 42^nd Amendment to the Constitution, brought the subject under “concurrent” list, that enabled the centre also to legislate on the subject & also step into administer the same.[42] With the result, in the event of conflict between the laws & their enforcement by the state & the centre, the writ of the latter would run[43].                                                                                                                          

v      Reports as to rapid decline of forests, that were under exclusive control of state governments, made the centre to step in & enact the Forests(Conservation)Act, 1980, that transferred the power of decision – making of  de-reservation of forests or use of forest land for non- forest purposes from the states to the centre[44]. Law –making power, administrative over sight & control over forests would vest ultimately with the central government, by these changes.

v      The third major development is the judicial intervention, especially in the case of T.N.Godavarman Thirumulkpad v. Union of India[45] that, besides indicting the forest & wildlife authorities for poor management of the resource, has virtually re-written the whole system of forest governance in India.

Each one of these developments have contributed to a substantial alteration as to the equations of relation between & among the forester, the people, the industry & the resources, they have, by their own right, brought the entire system of forest governance in India under the scanner of microscopic scrutiny. Of the three, the last one is the most recent. The case, also referred to as the Forest Conservation Case, began its life as a seemingly routine & innocuous one at that, wherein a complaint was made as to the wanton destruction of forests by contractors, in the Nilgiris, by a concerned citizen way back in 1995. From that situation, the case, in the last 9 years time, has covered the entire territory of India, in geographical terms, brought the whole forest administration on to its heels, in terms of alerting & cautioning it as to its commissions &omissions, & the law in force for a critical review. The case is not finally decided as yet! For a court, the highest one at that, where time is in very short supply, having over hundred & ten sittings & handing down upwards of forty orders & still not being done with the case, it is a demonstration of acute concern & constructively critical effort in review & reform of a derailed system of governance, by the justice dispenser at the apex level. Since the approach & resultant orders of the court have far reaching implications on a number of aspects of forest governance, they are referred to at appropriate places of analysis of forest administration.

(b) Governance by the state: - (i) Special law & professional body: The legislative prescription is that the forest administration is the exclusive preserve  of the government. Besides managing the government forest (categorized as reserve protected & village forests), the government has the power to acknowledge, accommodate, restrict & extinguish individual & collective claims in them. Forests that are in private hands can also be taken over for management when the government deems it necessary in order to save, protect, conserve & develop the forests that are already with the government or in the over all interest of the eco-system & ecological integrity[46]. Thus, the law empowers the forest officer &the government in a unique position to manage all forest land –public or private –without being challenged, all by himself. The guiding principles of governance is that of ‘eminent domain’ of colonial vintage & the grammar of forest administration, even to this day, is the one provided by B.H.Baden Powell a veritable tool-kit for the exercise of state monopoly over the resources[47]. In the whole scheme of governance, the forester is the protector, conservator, researcher, educator, manager, policeman, contractor & judge all rolled into one[48]. The underlying assumption for positing the forest officer with over all control and authority is that he is the creature of a special law &  that he is best equipped to take care of the resource. The assumption & the faith appear misplaced & factually wrong, as the following observations would reveal.

In the first place, when the forest department was created, it was put under the charge of Dietrich Brandeis, a German & most of the key positions in forest administration were held by the Germans till around the time, the First World War broke out. German administration in a British colony was not just a coincidence. It was a conscious decision of an imperial power to entrust the administration of a resource, to a German botanist & his fellow country man. This was because of the fact that while the English had the proven track record of forest consumption, the Germans had acquitted themselves as master conservators. Despite the commercial & developmental thrust to the law,  the forests  apparently remained safe & flourished till the Germans continued to be at the helm of affairs. While the British were in charge of overall administration, every single effort of them in extending their system into the forest area under some ruse or the other (- cultivation, revenue generation etc.) were stoutly repelled by the German forester, with some degree of success. The schism based on antagonism of interests & differences of stand point is very well recorded in history[49]. It is also no mere coincidence that the German officers were eased out of the forest service & revenue authorities took their position, by the time the 1927 Act was brought into force[50]. The conquest of the revenue interest over the conservationist was complete figuratively, legally & factually. With the mask off, the new breed forester had all the makings of a revenue officer pursuing commercial interests of the state, occasionally mumbling the language of the impoverished, and making  some allowance for their claims over forest lands for food, fuel & fodder. Even today, the forester is a tooth-less tiger as he is at the mercy of the general administration, most of time, either to enforce the law against the wrong doer or in the determination of area under forest cover.

Secondly, the forest department operated under the shadow of the Ministry of Agriculture till 1984, when it acquired an identity of its own with the creation of the Ministry of Environment & Forests. Crisis of identity for the officers of the forest department is understandable as agricultural interests & concerns predominated policies & programmes of action even in the areas under the authority of the forester, long after independence.

Thirdly, the whole process of capacity – building in the Forester, leaves a lot to be desired. The nature of training offered, the manual for step-by-step implementation of law provided and field experiences gained by the officers in higher echelons of the ladder, appear to equip them with everything else other than honing their skills of conservation and protection of forest resources. Updation of their knowledge about the laws, case-laws and procedures of implementation are woefully inadequate[51].

Fourthly, as observed by the higher judiciary, we have a centralized bureaucratic structure of administration that is inadequately equipped to be in-charge of forest governance in India. The information base with which the forester administers the resource appears to be not up to date, as the Supreme Court discovered in the T.N. Godavarman’s Case. At the very out set, the Court found that the state governments did not have authentic statistical data of the existing forest cover under the jurisdiction of the respective forest departments and the existence of a variety of unplanned developmental activities within the forest areas. Taking the forest authorities to task, for this serious lapse and unprofessional way of going about their functions, the court , in its very first order, directed the State Governments to determine the area that come under forest cover, put in place ‘working plans’ and carry out activities upon obtaining the approval of Central Government. It also proceeded to define “forests”, as to include its dictionary  meaning.[52] While the definitional exercise by the court could be considered as correcting a legislative lapse, its finding of the fact that the forester did not know the exact area under his jurisdiction and was performing his functions without approved plans of action, as required under law, gives the forester a status far lesser than that of an expert professional who knows his job. Another disconcerting development that puts the forest official to be viewed in poor light is the lack of faith displayed by the Supreme Court in the ability of the forester in carrying out its instructions, from time to time. This is to be discerned from the orders passed by the court that resulted in the Constitution of State Expert Committees, by the State Govts[53], a High Powered Committee (HPC) for the North East by the Supreme Court itself[54], the constitution of the Centrally Empowered Committee (CEC)[55] and the Arunachal Pradesh Forest Protection Authority[56] by the Ministry of Environment and Forests. Overseeing, monitoring and regulating the working of the forest department were the primary functions assigned to these state level and regional level committees. The CEC had the broad task to monitor and ensure compliance of the orders of the Supreme Court.

Creation of new entities, naturally took away much of the discretionary and decision-making power of the forest department. As things stand now, the Forester is yet another subordinate agency of the State, that would act under dictation  and carry out instructions given to him by the committees, thereby making him lose his identity as a specialized and expert body of the state entrusted with the responsibility of taking special care of an unique eco-system and a national asset. Instances exist of the forest functionary, mechanically implementing  court orders, without an understanding of the spirit with which decisions were made. Sriram Saha v. State of West Bengal[57], is a case on point,. Following the order of the Supreme Court banning timber felling in forests, the state authorities barred the petitioner from felling unproductive mango trees in his orchard. The High Court had to intervene and clarify that the Supreme Court orders did not cover private plantations comprising trees planted in an area which was not a forest.

Keeping pace with the legal evolution in areas of activities akin to theirs, has not been  one of the virtues of this professional body. When drafts after drafts of  Biodiversity Bill were prepared and kept in circulation, most of the key functionaries of the department were either oblivious of such an activity or considered the development not concerning them. It was only when the final draft bill entered the portals of the Parliament for discussion, with a provision that overrode the authority of the forester, did the department wake up and ensured its transformation into an innocuous one.[58]

Shorn of independent professional expert status, the provisions of law that invest in the forest functionary with a variety of functions appear redundant and inconsequential.

(ii) Programmes of implementation: The various operational tools of implementations employed by the Forester in giving effect to the letter and the spirit of the law, in a number of instances, are either unoriginal or with very little legal basis. Two illustrations elucidate this point:

• Joint Forest Management (JFM): One of the major programmes launched with much fan-fare and as a model of participatory forest management effort, is the JFM experiment. The sources of authority for this programme are the Forest Policy Document of 1988[59] and a circular of the Central Government in 1990[60]. Through the circular, the Central Government issued guidelines for involving village communities and voluntary agencies for regeneration of degraded forest lands. The guidelines, envisaged formulation of  a Joint Forest Planning Management Scheme, involving preparation of plans for the development and protection of forests with community participation and management. With over twenty-five states launching and implementing this programmes, the MoEF has, often times, projects this as a kind of badge of honour, an inspired move, that has empowered local communities, helped alleviate rural poverty and engendered community participation and partnership in Forest Management. But the crux of the matter is that the programme doesn’t have  a legal basis.[61] Which means that the activity is possible only at the discretion of the Government and can be withdrawn at any time. It is not even an arrangement between equal partners. The government prepares the plan and offers it to the community which, in turn, may either accept it or reject it. If they do the latter, no guarantee or obligation exists, for the State to come up a with an acceptable revised plan for approval. The community cannot volunteer to undertake the responsibility nor a duty exists upon the forest department to accept the community proposal. The plan and the benefit-sharing arrangement are all the exclusive preserve of the forest department. The community should accept and implement it, to derive any benefit. It is not, in real terms a joint plan and implementation, but following  a dictation of the forester by a community, to work and earn wages for  their labour. It is a design to expand on the forest cover, with little physical sweat by the forest department camouflaged as a panacea for overcoming rural impoverishment, engage them in productive activities and make them partners in resource conservation and improvement. When enough scope existed under the Forest Law to forge such partnership, on sound legal basis, by the creation of village forests,[62] contemplation and operationlization of the progamme of this kind that stands on a very shaky foundation of administrative  whim, makes it a highly unreliable, suspect and  less than honest proposition.[63]

• Eco-Development Project: This ambitious  programme of government of India and a number of state with  the support of the World Bank had the principal object of protecting the eco-system in the National Parks of Seven states in India and the interests of the people living in and around these areas. The project planned in early  nineties, envisaged reduction of pressure on the forest resources by “voluntarily” relocating the people living there. It turned out to be an effort in sanitizing the sanctum sanctorum of the forest area from the human presence. The lack of transparency in the process of evolution of the project and in the evolution of resettlement package and subsequent amendment of the Wildlife Act[64] literally peripheralised the interests of the tribal communities in the forests. The entire exercise was a well engineered plot of achieving the goals of forest department of alienating the people from their resources, by  making use of a donor driven exercise. It was an exercise that borrowed the environmental ethic of western conservationists, of managing forests and wildlife without the intervention of local communities. The feasibility and efficacy of alien concept of conservation and its suitability to Indian Forest environment which had significant human presence, became a matter of little concern for governance for the forester. The simple logic appeared to be that since both the idea and the fund came from elsewhere that eliminated the human presence, that was both a hurdle and a competitor to the official conservator, it was a welcome measure. Human interest got sacrificed at the altar of western notion of conservation and the forester had no qualms about it.

(iii) Forester and his Status: One of the elements of good governance – ‘think globally and act locally’ – does not operate in the forestry sector. Centralization is not just in relation to policy making (-which is desirable), but exists as to every aspect of governance. The highly centralized and bureaucratized structure of governance, as it has emerged now, has blurred the distinction between policy-making, law-making and law-enforcement. Everything appears to have gone into the hands of the government – at the centre. The Act of 1927, vested the forest administration and also the decision classification of forests to the State Governments. The legislation of 1980 (with its amendment in 1988), took away the power of the State Government about de-reservation of forests and use of forest resources for no-forest purposes and vested it with the Central Government. The Forest Conservation Case (T.N. Godavarman Case), is a major development that  completely changed Forester’s status.  It first resulted in the highest court issuing instruction to the forester on a number of aspects of forest management. With the creation and Constitution of a number of committees, with the ostensible object of implementing and overseeing compliance of the court orders, forest  bureaucracy is brought directly under centralized ‘Committee-rule’[65].  The Godavarman case has, indeed, added a new dimension to Environmental Governance – that of, administrative take-over of judicial functions! Administration at the highest level, in the form of committees, especially the CEC, virtually decide on every thing concerning forest administration and judge commissions and omissions.

The administrator’s status in Forest Governance is further whittled down by another development. This is by the Constitution of a National Forest Commission under the Chairmanship of Justice B.N. Kripal, Former Chief Justice of India.[66] Its Terms of Reference included a thorough review  and assessment of policies and laws and the working of the forest administration, their impact on economic, social and cultural lives of the people and the environment. This is to be followed by advising the Central Government for policy and legislative changes besides restructuring and reforming the forest administration to establish meaningful partnership between the forest administration and the local communities and to make the whole system achieve the goals of sustainable forest and wildlife management and ecological security.[67] Pursuant to its creation, the commission has been involved in a fact-finding mission about the nature of claims and rights of communities over  forest resources.

These developments are the result of the failure of the working of the system. The forester, under law, has the primary function of receiving, assessing and settling claims of people over resources. It  is his duty to decide on what kind of plantations be grown on the forest  and. Further, it is his task to decide on the time, method and manner, of harvesting forest resources and their management. All these and many other managerial, quasi-judicial, technical and decision-making functions are either withdrawn from him or brought under the scanner of monitoring, scrutiny, review and reform by the newly created institution . It should be noted here that these developments are not the result of the dynamic evolution of the law-making process, but more of ad-hoc and knee-jerk judicial and executive responses to address inadequacies and failings in both the framework of law, institutions created under it and their working.

Added to this is the problem of poor and almost nonexistent coordination in the working of different agencies of state. This problem is not confined to inter-departmental coordination. It extends to intra-departmental one, as well. It is not an uncommon sight of clashes occurring between foresters in-charge of different tasks like, JFM programme, Forest Development Corporation and those working in wildlife areas. Internal  conflicts apart, they have to deal with encroachments as well. For handling this problem, they require the co-operation of authorities from Revenue and Agricultural Departments. The required cooperation may not be forth coming as the priorities, approaches and world-views many conflict. This adds to the problem of decision-making and their effective implementation.

C  Forest Governance at the Grass-roots:- Constitution- apart there exists very little respect for or recognition to the role and contribution of the community and local self-government institutions, in the control and management of resources. Recognition of local talent by the Forest Department has been confined to, (-like in the case of putting off forest fires or in taming wild animals), using them as  wage labourers and nothing more. There has been nothing like according the status of “Conservators” of local resources to them. There is an interesting, if not diabolical, legislative exercise under the new Wildlife (Protection) Amendment Act, 2002. With the ostensible object of facilitating a community manage their wildlife, the law provides for the creation of community Reserves.[68] It creates an authority composed of remembers from the local panchayat that prepares and implements a management plan to ensure protection of Wildlife and its habitats in the reserve.[69] This seems like an improvement over the JFM programme. But, it is not so. Community Reserve can only be constituted over a private property (-voluntarily surrendered to the state by the owner of such property) or a common property meant for community use. While voluntary surrender of privately owned property is rarest of rare occurrences, scope exists for conversion of Rural Common Property Resources for this purpose. But , such a measure is bound to further impoverish the rural poor, as their dependence on common Property Resources as source of sustenance is lost through this legislative sleight of hand while, at the same time enabling the state, without much sweat to increase the area of coverage for Wildlife protection, Forest laws, and Administrative protection. Forest laws and Administrative practices have ensured community presence and participation at the margins by either giving them token and insignificant representation in the committees or by launching programmes of JFM and Community Forest Management (CFM) variety, with very little  scope for employment of their native skill in designing plans and to implement them. Even when the legislation provides for an assignment of forest land to the community as in the case of Village Forests[70], little or no attention is paid to operationalise the legislative intent. The intimate linkage between the rural impoverished and the common resources around them and their symbiotic relationship is something that is yet to get an unalloyed acknowledgement and acceptance in the system of forest governance. It is appropriate to refer a judicial opinion at this juncture. This concerns the Godavarnman Case, In one of its orders in case, the Supreme court found the irrationality  in the argument of the state government that linked the loss of revenue occasioned by the ban on timber trade and running wood-based industries with loss of livelihood of rural community while it agreed that it was neither feasible nor desirable to impose a complete ban on such economic activities, the court clarified that the ban was not meant to operate so as to prohibit the local community from meeting their day to day requirement. It held, the industrial requirements have to be sub-ordinated to the maintenance of environment and ecology as well as bonafide local needs[71], and went on to stress on the closeness of mutually dependent relationship between the resources and the community.

If one goes by history, little doubt exists as to closeness of relationship between rural community and forests, especially of the forest dwelling tribals,[72] When the draft of the Forest Bill was being circulated for opinions and comments, in early 1870’s officers in Civil service (notably those in Madras Government) found the proposed law unacceptable as the forest area belonged to the communities and there was little space over which the government could stake its claim and administer. The forest law met with stiff opposition all through British rule, in areas where community tradition of forest resource management was quite strong (like in Chotanagpur in 1893, in Bastar in 1910, in Gudem – Rampa in 1879-80 and in 1922-23, in Midnapur in 1920 and in Adilabad in 1940). These were not mere rebellions acts, but efforts in conserving, protecting community traditions associated with forests. As early as in 1878, the Poona Sarvajanik Sabha, was reported to have, offered a constructive suggestion for the state to follow: to allow the villagers to manage and conserve their forests and support their efforts, so that there would be no human pressure upon Government managed forests.[73]

It was because of a relentless struggle of people of Garhwal and Kumaun region, the British enacted a law that legally empowered the community in the region organize Vanpanchayats and manage the forest area there.[74] By 1960, over 4000 Van Panchayats existed in the region, and an official report commended the exemplary work of the community in forest  protection and development.[75] Ironically, what the colonial British facilitated got curtailed by the state government in 1976, when it brought Van Panchayats within the Indian Forest Act and framed rules in relation to them. Under the rules, civil administration’s approval became mandatory, each time a management plan was prepared, every five years. The preparation of the management plan, guided by a set of regulations, further restricted the independent evolution of it by the community. It is a great irony that after the new state of Uttaranchal was born, a new set of rules were put in place amending the existing ones,[76] that gave sweeping powers to the Forest Department to control Van Panchayats in a siminlar manner as it prevailed, prior to the making of the 1931 Act.[77] Seeing these developments, the words of J.A. Voelekar, an agricultural expert come to mind:’ the tendency of our system of government has, to a considerable extent been to break up village communities, and now for the most part they are heterogeneous bodies rather than communities.”[78] This was the remark made about British administration, way back in early 1890’s. Going by the legislative developments and administrative actions in independent India, as discussed here, the statement seems much more suited to now than ever before.

d) Forests and Corporate Entities:- While the Forest policies and laws have always had a soft corner for wood-based industries. The industries have now become more enterprising and innovative in their approach. Instead of entirely depending on the state for supply of raw material, they have been engaged in growing their own raw materials on their private lands. They are also extending incentives and the lure of higher returns to the farming community by engaging them in contract farming of trees. While this has resulted in a new kind of partnership, between the farmer and the entrepreneur, concerns have been expressed in various quarters of the arrangement affecting the food security of the country and encouraging monoculture plantations adversely impacting on the biodiversity. Proposals by industrial houses to take up afforestation programmes, by making investments in waste lands and degraded forest lands, that would help in expansion of forests and make available the ecological services the forest are known for at no additional expense to the state, are making the rounds in official circles. In return for which, the corporate entities desire to be either allowed to grow in part raw materials for their enterprise or get certain concessions and subsidies in their operations from the state. Several state governments have shown interest in such initiatives. Even the centre appears to be favorably inclined to consider such proposals, especially n the wake of the Kyoto Protocol (1997) to the Frame Work Convention on Climate Change, 1992 becoming operational shortly, binding the Government of India to honour its commitments.[79] While industrial interest and investment in afforestation efforts are welcome, one becomes sceptical about the underlying intent, especially when local, national and international developments raise cause for concern.

IV. THE WAY FORWARD

The forgoing analysis, it is submitted, presents a picture of forest governance that is at variance with Constitutional aspirations. It is a vision that is myopic, visualizing forest management as a predominantly a money-spinner for the state with monopolistic perception of state-centered management and ambiguously conceptualized scheme of governance that has little concern for conservation. It is a system that has strengthened the British legacy of drawing a legal fence to further alienate the people from the forests. It is an environment that has little scope for popular participation and least accommodative of good management practices that are indigenously evolved. It is a structure of administration that is not well-informed and well-equipped in the finer aspects and nuances of good governance. It is a body nose-led by court directions and reduced to following dictations from newly emerged legal entities triggered by judicial interventions. It is a highly centralized, bureaucratized system supported by adhoc measures and programmes of action, deriving inspirations from sources outside the legal frame. And, it is a state of affairs, whose reform is long overdue. With the kind of judicial chastisement it got the system appears to be beyond redemption. All the same a few suggestions, as below, are made with the hope that these could initiate the process of reform:-

(A)   Forest-Sector Specific Suggestions: The broad-outline of suggestions are legislations specific to Forest Laws (i.e. Indian Forest Act, 1927 and Forest Conservation Act, 1980);

1. Both the legislations need have to be collapsed into one. No need exists for separate legislations as the subject “Forests” is brought under the concurrent list. The central law would prevail over any state legislation that suffers from repugnancy.

2. The Act should contain a purposive definition of “Forests”. The objects of
   classification of forests into “conservation” “village” and “other” class of forests should be clearly stated and defined. There could principally be three categories of forests like, “conservation” (-Where no commercial activity could take place), “village” (from where the local community could draw their source of sustenance ) and “others” (-where economic activities are allowed in a regulated manner.

3. The dos’ and don’ts’ as to the activities in different categories of forests should be such that they should not affect the traditional, forest-friendly, sustenance-oriented entitlements of forest dwelling and forest-dependent communities.

4. The administrative architecture ought to have the village/Forest village as the unit of governance. The forest authorities are to perform the functions of technical assistance, information and research support to the communities of people in managing the resources. Imparting Education and training in good traditions of forest management should be one of the primary functions of the forest department. Authority coupled with accountability and transparency in the administration should be the essence of governance. The governments at the state and the centre should provide the broader policy visions and act as  appellate authorities in resolution of disputes. While the village community would have the first charge over the resources, in satisfying their livelihood requirements, the forest resources should be managed as a national asset. The state government to have the power to decide on sharing of benefits and burdens among the panchayats in an equitable manner. Instead of JFM, S28 could be given effect to[80]

5. The design of the law should be such that in an incremental way, it should be worked to get integrated with other Bio-diversity – related laws, as to end up as  one single piece of legislation dealing with every aspect of Bio-diversity resources. To that end, the Forest Law should have an Advisory Body, comprising of representatives of authorities under each of the related laws and representatives of village community, in each state. The Advisory Body should not only guide the state government in making policy decisions, it should also be entrusted with preparation of a road-map for integration of laws and authorities.

6. Flexibility should exist, in mechanism of management as to accommodate environment friendly traditional management practices and certain unique regional model (-like, the Van Panchayats) so as to facilitate indigenous wisdom to get recognized and utilized.

7. Provisions should exist in setting local educational and research institutions in developing the information base and in educating about best management practices.

8. Decisions as to the involvement of private enterprise in investing in and in the commercial exploitation of forest resources can be made at the local level, subject to review and decision at the appellate level by the sate government. The decisions need have to guided by principles of equity, sustainable development, precaution after satisfactorily addressing the concerns of conservation. Wherever national interests are involved, the central government shall be the decision-making authority which too, ought to be guided by the aforementioned principles and strategies.

(b) Long Tem Strategies:

1) Policy Reforms:- The existing policy documents, dealing with different aspects of natural resources (like water and forest) and those concerning which no policy exists (like Biological diversity, land use etc.) are required to be re-oriented and integrated in such a manner as to prioritize the Directive Principles of state policy that make satisfaction of basic needs as a non-negotiable requirement of governance and  ensuring ecological security, integrity and conservation as the cornerstone of the resource management regime. Adoption of Principles of precaution and inter-generational Equity to steer developmental decisions should first find primacy in the overarching Environmental Policy. Decentralized and participatory system of governance, a well-developed, authentic and upto date information-base and a management mechanism that is open, transparent and accountable, should be the driving force and integral aspect of resources management. Private participation and investment in forest and other resource management activity should be strictly in public interest and anchored to considerations of equity. The Resource Management Policy should not be a stand alone document, but should be such that it would inform and influence all development-related policies and programmes of action.[81]

Ecological concerns should subsume economic considerations in the decision-making process. It must be understood and internalized that forests and ecology deserve to be considered as life support systems and not commodified. The over emphasis on deriving greater revenue from forests, is a colonial notion and it would be worthwhile to adopt the approach of certain other countries like U.S. and Japan, where the investments made and expenditure incurred towards maintenance and improvement of forests and other natural resources far exceed the revenue derived from them.[82]

2. Legislative Reforms:- 

Since there is need for a re-look, review, reform and recasting of all the biodiversity-related laws, only a few broad outline of reform are suggested herein below:-

Ø       Bring all bio-diversity related laws under a single umbrella law, with the administrative set up classified on the basis of functions assigned and performed by each section. Systems be put in place to ensure organic linkages and coordination among the line agencies and different levels of administration.

Ø       The system of governance should follow the constitutional scheme with the local panchayat as the unit of governance and the administrative apparatus in the form of specialized agencies of state providing the support of expert aid, guidance and advise and the state and central governments providing policy oversight.

Ø       Private participation in the system of governance should be need based and guided by considerations of equity.

These are just a few of preliminary thoughts for reform. One of  the essential elements of good governance is that the laws should be in dynamic ferment. Unfortunately forest laws have been fermenting for long. It is high time some dynamism is shown in recasting them. It is hoped that this effort may catalyze the process.